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“Do Not Call” means Do Not Call: CRTC Enters into MOU with FTC on Spam and Unsolicited Telecommunications

Posted in Anti-Spam, Regulatory Compliance, Telecommunications

On March 24, 2016, the Canadian Radio-television and Telecommunications Commission (“CRTC”) signed a memorandum of understanding (“MOU”) with the United States Federal Trade Commission.[1]  This MOU is an effort by Canada and the United States to work together on anti-spam enforcement measures, and expressly refers to unsolicited telecommunications, unsolicited commercial electronic messages (spam), and other unlawful electronic threats (e.g., malware and botnets).… Continue Reading

Keep It To Yourself: Ontario Court Introduces Tort of Public Disclosure in Doe v D, 2016 ONSC 541

Posted in Privacy

Following the 2012 decision of Jones v Tsige (“Jones”), there has been judicial debate in Canada over the recognition and adoption of common law privacy torts, such as the tort of intrusion upon seclusion.[1]  Recently, the Ontario Superior Court of Justice in Doe v D (“Doe”) expressly recognized the tort of “public disclosure of private facts” to expand the scope of privacy protection in Canadian common law.[2] … Continue Reading

Work and Play All in One — Mitigating Risks of Security Incidents and Privacy Breaches in BYOD Programs

Posted in Privacy

Given the popularity and prevalence of mobile devices such as smart phones and tablets in today’s world, it is no surprise that Bring Your Own Device (“BYOD”) programs have become an increasingly common arrangement for organizations. BYOD programs allow employees to use their own mobile device for both personal and business purposes, blurring the traditional line between work and play. A recent report indicates that more than 75% of Canadian businesses support employee-purchased smartphones and tablets in the workplace.[1]

Properly implemented BYOD programs are appealing to organizations for many reasons. First, it allows them to save substantially … Continue Reading

Federal Court Conditionally Certifies Privacy Breach Class Action

Posted in Data Breach, Privacy

In the recent decision of Doe v Her Majesty The Queen, 2015 FC 916 (“Doe”), the Federal Court granted conditional certification of a class action brought on behalf of members of the Marihuana Medical Access Program (“MMAP“). This conditional certification is notable as it, alongside the recent case Evans v. Bank of Nova Scotia (“Evans“), is one of the few class actions certified in Canada relating to breaches of privacy. Particularly of interest is the Plaintiffs’ allegation that the Defendant committed the tort of intrusion upon seclusion and of publicity given to private … Continue Reading

Domain Name Disputes: What You Need to Know – Part 1

Posted in Intellectual Property

Individuals or businesses may find themselves in a dispute over a domain name, whether as a complainant or the registered owner of the domain name.

Depending on the parties involved and where the domain name is registered, two potential avenues for domain name dispute resolution are through: (1) the Canadian Internet Registration Authority (“CIRA”), and (2) the World Intellectual Property Organization (“WIPO”).

Part 1 of this two-part blog will address CIRA’s dispute resolution process for .CA domain names. Part 2 will address WIPO’s domain name dispute resolution process.… Continue Reading

Cyber-insurance: What you need to know?

Posted in Data Breach

A question that I often get from clients is one about cyber-insurance. In light of the recent passing of Bill S-4, better known as the Digital Privacy Act, the Personal Information Protection and Electronic Act (“PIPEDA”) has now been amended to include mandatory breach notification provisions. While these mandatory breach notification provisions are not yet in force, it is a good time to review your cyber-insurance coverage.

As data breach incidents continue to rise, and legislative regimes provide more and more stringent regulation of data breaches, including the proliferation of mandatory breach notification provisions, the expense associated with data … Continue Reading

Manitoba Court Interprets the Common Law Tort of Intrusion Upon Seclusion

Posted in Privacy

Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44 (“Grant”), is a successful appeal of the decision of the motion judge, which upheld the decision of the Master striking parts of an amended statement of claim as disclosing no reasonable cause of action. In doing so, the Manitoba Court of Appeal (the “Court”) held that the tort of intrusion upon seclusion, as set out in Jones v Tsige, may allow family members, who claim to have suffered as a result of a breach of a privacy interest of another member, to advance … Continue Reading

PlentyOfFish Hooked by Anti-Spam Legislation

Posted in Anti-Spam

Canada’s Anti-Spam Legislation (“CASL”) came into force on July 1, 2014, creating new requirements for sending commercial electronic messages (“CEM”).[1] A non-compliant business risks having “administrative monetary penalties” (or “AMPs,”, which are essentially fines) levied against it by the CRTC.   However, until recently, there has been no guidance on how aggressively CASL would be enforced, the scope of Notices of Violations, or how AMPs would be determined, and the scope of such. Businesses were stuck in a murky regulatory regime.

With the recent $48,000 AMP imposed on PlentyOfFish, as part of an undertaking entered into … Continue Reading

Defamation in the Blogosphere: Baglow v Smith

Posted in Defamation

Overview

In introduction to Baglow v. Smith, 2015 ONSC 1175 [“Baglow”], an action for defamation involving political bloggers, Madam Justice Polowin described political debate in the Internet blogosphere as, “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar.” She further stated that, “it is not for the faint of heart.” Baglow is a case around the alleged defamation of the plaintiff through a blog post by one of the defendants. The plaintiff felt that the blog post went “too far” and sought to hold the blog post author, and the moderators of the message board, liable for defamation.… Continue Reading

Canadian Courts Refuse to Settle for Weak Privacy Rights: “Imperial Oil Limited v Alberta”

Posted in Privacy

Overview

Last week, the Supreme Court of Canada (“SCC”) dismissed leave to appeal the Alberta Court of Appeal (“ABCA”) decision in Imperial Oil Limited v Alberta., thereby endorsing the ABCA’s approach to settlement privilege in the context of applications under the Freedom of Information and Protection of Privacy Act (“FOIPP”).[1] Settlement privilege is alive, well, and strongly protected in Alberta, even in the more public regulatory context, as long as parties fall within the exceptions set out in ss. 16 and 27 of FOIPP.Continue Reading

New Year, New Mandatory Breach Reporting

Posted in Data Breach, Privacy

Overview

It is rumoured that Bill 12 that amended the Alberta Health Information Act (“HIA”), passed on May 14, 2014, will come into force this year.  Bill 12 made 3 significant changes to the HIA:

  1. adds mandatory breach notification provisions;
  2. authorizes the Office of the Information and Privacy Commissioner (“OIPC”) to disclose information about a breach in certain situations; and
  3. creates new offences and penalties.

We will discuss these 3 amendments in turn.

Continue Reading

Alberta PIPA Amendments: Much Ado About Nothing?

Posted in Privacy

Just in time for the new year, the Alberta’s Personal Information Protection Act (“PIPA”) was amended by Bill 3 which came into force on December 17, 2014.  These amendments were in response to the Supreme Court of Canada decision to struck down PIPA in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (“United Food”) on the basis that it infringed on the union’s freedom of expression.

Continue Reading

Lapse of Alberta PIPA Thwarted

Posted in Privacy

In my blog dated October 17, 2014, titled, “Impending Lapse of PIPA Creates Uncertainty”, I explored the consequences of PIPA being struck had the Alberta government failed to amend PIPA to comply with the Canadian Charter of Rights and Freedom (the “Charter”) and meet the November 15, 2014 deadline.

Since my October 17, 2014 blog, I have had the opportunity to meet Jill Clayton, the Alberta Information and Privacy Commissioner. In my discussion with Jill Clayton, she advised me that, on October 31, 2014, the Alberta government was granted a 6 month extension to amend PIPA and ensure compliance. … Continue Reading

Impending Lapse of PIPA Creates Uncertainty

Posted in Privacy

On November 15, 2013, the Supreme Court of Canada struck down the Alberta Personal Information Protection Act (“PIPA”) in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (“United Food”), and despite a one-year stay to allow for necessary amendments, delay on the part of the Alberta government has caused PIPA’s lapse to become an inevitability.

The SCC found that sections of PIPA violated the right to freedom of expression enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). Further, the SCC found … Continue Reading

“Objectively Reasonable” and Privacy: Recent Developments

Posted in Privacy

The ubiquitous and rapidly-evolving nature of technology has recently necessitated serious consideration of our “reasonable expectation of privacy.”  This concept is at the core of Canadian privacy law. In particular, the concept is a key part of the Charter test for s. 8, the right to be secure against unreasonable search and seizure. The Supreme Court of Canada (“SCC”) grappled with these questions in R v Cole[1] and R v Vu[2], and more recently, the British Columbia and Ontario Courts of Appeal applied these Charter principles to couriered packages and USB keys in R Continue Reading

The Enforcement Begins: Highlights of the CRTC FAQ Updates on CASL

Posted in Anti-Spam

CASL came into effect on July 1, 2014, including the provisions for sending commercial electronic messages (“CEM”) (section 6) and installing computer programs (section 8).   Since July 1, 2014, it is reported that the CRTC has received more than 1,000 complaints.  Hence, awareness of this new law is spreading quickly, and as such so should attempts by organizations to become compliant.

The CRTC FAQs on Canada’s new Anti-Spam Legislation (“CASL”) were updated on July 4, 2014.  We covered the revisions made to the FAQs in May 2014 in a previous blog post.  The updated FAQs … Continue Reading

Intrusion Upon Seclusion Part 2: Implications for Businesses Across Canada

Posted in Privacy

Recently, my colleagues Sean Griffin and Ann-Elisabeth Simard considered the Evans v Bank of Nova Scotia (“Evans”) decision wherein the Ontario Supreme Court (the “Court”) certified a class action proceeding for allegations concerning a breach of privacy rights through the tort of intrusion upon seclusion first set out in Jones v Tsige (“Jones”).  You can access his blog here.

Evans has set a precedent for the low threshold required to be met for certification in class actions concerning breaches of information privacy. In this blog, we will canvass the implications of the EvansContinue Reading

You can stay anonymous: SCC recognizes a privacy interest in protecting anonymity on the Internet

Posted in Privacy

On June 13, 2014, in a landmark privacy ruling, the Supreme Court of Canada (“SCC”) in R v Spencer[1] (“Spencer”) unanimously recognized that, in addition to confidentiality and control of the use of personal information, there may be a privacy interest in protecting anonymity in the context of internet usage. In this decision, the SCC decided that a person has a reasonable expectation of privacy associated with Internet activities and that the “lawful authority” exemption in PIPEDA does not create a basis to provide such information to the police unless the police actually demonstrate that … Continue Reading

Compliance with CAN-SPAM Does Not Equal Compliance with CASL

Posted in Anti-Spam

We are approximately a month away from the effective date of Canada’s Anti-Spam Legislation (CASL), July 1, 2014.  CASL is widely considered to be among the toughest anti-spam legislation in the world and will have significant implications for businesses.  All commercial electronic messages sent (i) by any person within Canada, or (ii) by any person outside of Canada to a person within Canada are captured by CASL, meaning it applies to international senders who send commercial electronic messages to Canada.  Those who violate CASL could face significant fines and potential civil action.

We have received many questions related to the … Continue Reading

Evolving Law of Trade Dress in a Digital World

Posted in Intellectual Property, Trade-marks

In an increasingly crowded market, businesses are investing heavily into unique customer experiences to boost brand identity and loyalty. As expected, there is a growing need to protect the design and other distinguishing elements incorporated into the products, packaging as well as off and online customer experiences. Collectively, these features are known as the trade-dress or the look and feel of the brand. The recent crack-down on 22 counterfeit Apple stores illustrates the importance of trade-dress protection.

This article provides an overview of the law on trade-dress in Canada and surveys the movement in the US to protect the trade … Continue Reading

Social Media and Disclosure in Litigation: Garacci v Ross

Posted in Social Media

Overview

Information disseminated through social media platforms such as Facebook and LinkedIn is of growing utility in litigation matters. Evidence obtained from social media accounts by way of discovery preservation and production orders has significantly strengthened the positions of litigating parties. This should come as no surprise as individuals routinely “post” messages, thoughts, pictures and experiences on these platforms, leaving a wake of evidence in the process.

There has been marked development in this area of law in Canadian jurisprudence. To date, Courts and Tribunals have, among other things, ordered the preservation and production of entire social media accounts, dismissed … Continue Reading

Hyperlinks Not a Copyright Infringement, According to the Court of Justice of the European Union

Posted in Copyright, Intellectual Property

Overview

In Svensson v Retriever Sverige AB, the Court of Justice of the European Union (the “CJEU”) recently ruled that hyperlinks to freely available Internet content do not amount to a copyright infringement.

The Svensson case involves a dispute between journalists and a media search service company.  Svensson, Sjögren, Sahlman and Gadd (the “Journalists”) wrote and held copyrights to press articles which were published in the Göteborgs-Posten newspaper and on its website.  Retriever Sverige AB (“Retriever”) operated a website that provides its clients with hyperlinks to articles published by other websites.

The Journalists … Continue Reading

Ontario Superior Court Revisits and Broadens Jones v Tsige

Posted in Privacy

In the recent case, Hopkins v Kay, the Ontario Superior Court of Justice recently declined to strike a claim for the tort of intrusion upon seclusion. In doing so, the court appears to have broadened the scope of the tort of intrusion upon seclusion as set out in Jones v Tsige. Companies should be aware of the broadening of the tort of intrusion upon seclusion and take steps to prevent such intrusion.

Background

In January 2012, the Ontario Court of Appeal released Jones v Tsige, in which it held that there is a tort of intrusion upon … Continue Reading